United States District Court, D. Oregon
S. Amanda Marshall, United States Attorney, and Gregory R. Nyhus, Assistant United States Attorney. UNITED STATES ATTORNEY'S OFFICE, Portland, OR, Attorneys for United States of America.
Gerald M. Needham, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Portland, OR, Attorney for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Before the Court is Defendant David Omar Chavez-Estrada's Motion to Dismiss his Indictment pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure. Dkt. 21. Defendant is charged with one count of Illegal Alien in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(5). For the reasons set forth below, the Court DENIES Defendant's Motion.
The Federal Rules of Criminal Procedure provide an opportunity for defendants to challenge the Government's indictment before trial. Rule 12(b)(2) provides that "a party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." A pretrial motion to dismiss an indictment cannot be brought to challenge the merits of the case and cannot be used as a device for a summary trial of the evidence. United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996). Further, when reviewing a pretrial motion to dismiss, the court accepts the Government's allegations as true. United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002).
Mr. Chavez-Estrada was born in Mexico. In 1994, when he was 14 years old, Mr. Chavez-Estrada unlawfully entered the United States. Since that time he has lived continuously in the State of Oregon. He is married to a citizen of the United States. Mr. Chavez-Estrada and his wife have four children, all of whom are U.S. citizens.
Persons like Mr. Chavez-Estrada who have accrued more than 180 days of unlawful presence in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bar under Section 212(a)(9)(B) of the Immigration and Nationality Act, codified at 8 U.S.C. § 1182, before they may return to the United States. Beginning on March 4, 2013, the U.S. Government began allowing certain immigrant visa applicants who are spouses, children or parents of U.S. citizens to apply for a Provisional Unlawful Presence Waiver ("PUPW') before they leave the United States. This process allows individuals who require a waiver of inadmissibility for unlawful presence to apply for such a waiver in the United States before they depart for an immigrant visa interview at a U.S. embassy or consulate abroad.
On March 18, 2013, Mr. Chavez-Estrada applied for a PUPW. He was represented by counsel from the Bailey Immigration Law Firm in Portland, Oregon. On July 30, 2013, the United States approved Mr. Chavez-Estrada's PUPW application. On that date, Mr. Chavez-Estrada received a two-page Form I-797 Notice of Action, explaining the requirements of the PUPW application process. The Notice of Action also explains what a PUPW does not provide, including that a PUPW does not grant legal immigration status, stay removal proceedings, or permit the applicant to work in the United States. The Notice of Action further states that a PUPW does not take effect until after the applicant has left the country, met with a consular officer abroad, and the consular officer determines that the applicant is otherwise admissible to the United States and eligible to receive an immigrant visa. All of this information is also included and described on the United States Citizenship and Immigration Services ("USCIS") website. Mr. Chavez-Estrada remained in the United States after his PUPW was granted. His interview was scheduled for January 24, 2014.
On September 15, 2013, Yamhill County Sheriff's Deputies responded to Mr. Chavez-Estrada's home after receiving a 9-1-1 call from Mr. Chavez-Estrada's daughter. The caller stated that Mr. Chavez-Estrada had pointed a rifle at his wife and had threatened to kill her. At Mr. Chavez-Estrada's home, the deputies recovered an unloaded firearm, described as an AK-47 style assault rifle. Mr. Chavez-Estrada was not home at the time, but was arrested nearby a short while later. He was given Miranda warnings and he denied owning the firearm.
Mr. Chavez-Estrada was later indicted in Yamhill County for Unlawful Use of a Weapon and for Menacing Constituting Domestic Violence. An Immigration and Customs Enforcement ("ICE") hold was placed on Mr. Chavez-Estrada, and he was detained. On November 14, 2013, Mr. Chavez-Estrada pled guilty in state court to one count of Menacing Constituting Domestic Violence, a Class A Misdemeanor. He was sentenced to 30 days in jail and 24 months of probation. Mr. Chavez-Estrada was later released pursuant to the ICE hold and transported to Tacoma, Washington, where he remained in ICE custody until the federal indictment was filed. On February 4, 2014, Mr. Chavez-Estrada was indicted by a federal grand jury for violation of 18 U.S.C. § 922(g)(5), which states in relevant part: "it shall be unlawful for any person... who, being an alien... is illegally or unlawfully in the United States... [to] possess in or affecting commerce, any firearm." Dkt. 1.
Mr. Chavez-Estrada moves to dismiss his indictment under a theory of entrapment by estoppel. He argues that the USCIS issued a standard advisement that individuals granted a PUPW not leave the United States "until the National Visa Center (NVC) notifies you of your scheduled immigrant visa interview date and time at the designated U.S. Embassy or Consulate." Based on this advisement from USCIS, Mr. Chavez-Estrada continues, he believed that his presence in the United States was lawful. Therefore, Mr. Chavez-Estrada ...